<q^l^  ^ 


Joel   Parker 
Conatltutlonal  Law 


THE  LIBRARY 

OF 

THE  UNIVERSITY 

OF  CALIFORNIA 

LOS  ANGELES 


CONSTITUTIONAL  LAW 


REFERENCE  TO  THE  PRESENT  CONDITION 


UNITED    STATES. 


By    JOEL    PARKER 


CAMBRIDGE: 
WELCH,    BIGELOW,    AND    COMPANY, 

PHINTKKS   TO  THE    UNIVKK8ITY. 

18  6  2. 


Digitized  by  tine  Internet  Archive 

in  2008  with  funding  from 

IVIicrosoft  Corporation 


http://www.archive.org/details/constitutionallaOOparl< 


CONSTITUTIONAL   LAW: 


REFERENCE     TO     THE     PRESENT     CONDITION 


UNITED    STATES 


By    JOEL    PARKER 


CAMBRIDGE: 
WELCH,    BIGELOW,    AND    COMPANY, 

I'la.NTICHS   ret   TIIK   UNIVKltHITY. 

1  8  G  2  . 


CONSTITUTIONAL    LAW. 


[From  the  North  American  Review,  for  April,  1862.] 


in 


1.    The  Constitution   of  the  United  States  of  America,   ivith 

an  Alphabetical  Analysis ;  the  Declaration  of  Independence ; 

the  Articles  of  Confederation ;  the  prominent  Political  Acts 

of  George   Washing-ton,  SfC,   Sf'C,   SfC.     By  W.    Hickey. 

Seventh  Edition.     Philadelphia.     1854. 

^,    The  Federalist,  on  the  New   Constitution,  ivritten  in  the 

fc     Year  1788.    By  Mr.  Hamilton,  Mr.  Madison,  and  Mr.  Jay. 

^     With  an  Appendix,  <fcc.,  &c.     A  new  Edition.     Hallowell : 

§     Glazier,  Masters,  and  Smith.     1842. 

m3.  Constitutional  Law.  Being  a  Collection  of  Points  aris- 
'^  ing  upon  the  Constitution  and  Jurisprudence  of  the  United 
States,  which  have  been  settled  by  Judicial  Decisions  and 
Practice.  By  Thomas  Sergeant,  Esquire.  Philadelphia: 
I  Abraham  Small.  1822. 
^4:.  A  View  of  the  Constitution  of  the  United  States  of  Amer- 
ica. By  William  Rawle,  LL.  D.  Second  Edition.  Pliila- 
^     delphia:  Philip  H.  Nicklin.     1829. 

^5.  Commentaries  on  the  Constitution  of  the  United  States; 
o  vnth  a  Preliminary  Review  of  the  Constitutional  History  of 
03  the  Colonies  and  States  before  the  Adoption  of  the  Consti- 
^  tution.  By  Joseph  Story,  LL.  D.,  Dane  Professor  of  Law 
Q  in  Harvard  University.  Boston :  Hilliard,  Gray,  &  Co. 
**       Cambridge  :  Brown,  Shattuck,  &  Co.     1883. 

6.  A  Course  of  Lectures  on  the  Constitutional  Jurisprudence 
of  the  United   States,  delivered  annually  at  Columbia  Col- 


449101 


lege,  New  York.  By  William  Alexander  Duer,  late  Pres- 
idoiit  of  that  Institution.  Second  Edition.  Boston:  Little, 
Brown,  k  Co.     185G. 

Speech  of  Hon.  M.  F.  Conway  of  Kansas.  Delivered  in 
the  House  of  Representatives,  December  12,  1861.  Wash- 
ington, D.  C. :  Scammel  &  Co.  18G1. 
Mr.  Sumner's  Resolutions.  Resolutions  declaratory  of  the 
Relations  betiveen  the  United  States  and  the  Territory  once 
occupied  by  certain  States,  and  now  usurped  by  pretended 
Governments,  ivithout  Constitutional  or  Legal  Right.  Bos- 
ton :  Daily  Evening  Transcript,  February  12,  1862. 


"Mr.  President:  —  When  the  mariner  has  been  tossed  for  many 
days  in  thick  weatlier,  and  on  an  unknown  sea,  he  naturally  avails  him- 
self of  the  first  pause  in  the  storm,  the  earliest  glance  of  the  sun,  to 
take  his  latitude,  and  ascertain  how  far  the  elements  have  driven  him 
from  his  true  course.  Let  us  imitate  this  prudence,  and,  before  we 
float  farther  on  the  waves  of  this  debate,  refer  to  the  point  from 
which  we  departed,  that  we  may  at  least  be  able  to  conjecture  where 
we  now  are." 

These  memorable  words  of  a  great  statesman,  preliminary 
to  the  commencement  of  his  magnificent  reply  to  Senator 
Hayne,  contain  a  sentiment  which  is  of  wide  application  ;  and 
in  these  days  of  difficulty  and  of  trial,  in  which  the  stormy 
passions  and  illogical  arguments  of  heated  politicians  obscure 
the  principles  of  constitutional  law,  and  the  more  insidious 
undercurrents  of  interested  political  aspirants  are  drifting  us 
hard  upon  the  breakers  of  disorganization,  the  prudence  which 
that  sentiment  inculcates  may  well  admonish  us  to  take  a 
fresh  observation  of  that  political  sun  by  the  aid  of  which  the 
ship  of  state  must  be  steered,  if  we  expect  to  attain  the  haven 
of  constitutional  peace. 

The  civil  history  of  the  United  States  from  the  Declaration 
of  Independence  to  the  adoption  of  the  Constitution  is  one 


of  great  interest.  The  formation  of  State  governments,  with 
constitutions  providing  for  a  distribution  of  powers,  in  their 
nature  legislative,  executive,  and  judicial,  among  departments 
duly  organized  for  their  administration,  in  a  manner  best 
adapted  to  exemplify  and  enforce  the  great  principle  of  self- 
government,  by  the  grant  of  sufficient  power  to  rulers,  but 
with  limitations  necessary  to  the  preservation  and  security  of 
the  rights  of  the  people,  was  a  problem  which  required  and 
received  the  careful  consideration  of  the  most  enlightened  citi- 
zens of  the  several  States,  acting  separately,  and  with  reference 
to  the  previous  laws,  habits,  and  interests  of  their  several  com- 
munities. At  the  same  time,  the  formation  of  a  permanent 
confederation  of  the  several  States,  with  sufficient  powers  for 
the  prosecution  of  the  war,  and  for  the  promotion  of  the  gen- 
eral welfare  of  the  whole, —  as  associated  governments,  having 
to  a  certain  extent  a  united  purpose  and  a  common  interest, 
—  tasked  the  energies  and  faculties  of  the  eminent  men  who 
then  composed  the  Congress  of  the  United  States. 

The  difficulties  attending  the  formation  of  such  a  Confeder- 
acy, arising  from  the  diverse,  and  in  some  respects  adverse, 
interests  of  different  States,  were  finally  surmounted,  and  the 
Articles  of  Confederation  were  ratified  by  all  the  States  ;  but  it 
soon  became  apparent  that  the  government  of  the  Confedera- 
tion was  inadequate  for  the  purposes  which  it  was  designed  to 
subserve.  There  was  not  sufficient  power  to  regulate  the 
commerce  of  the  country  and  to  provide  for  the  general  wel- 
fare, and  the  conflicting  interests  of  different  States  were 
endangering  the  peace  and  happiness  of  the  people.  Negotia- 
tions for  the  adjustment  of  some  of  the  matters  of  dinerencc 
resulted  in  the  Convention  which  framed  the  Constitution,  it 
was  called  for  the  purpose  of  proposing  amendments  <u  the 
Articles  of  Confederation  ;  but  it  was  soon  admitted  that  the 
defects  of  tlie  system  were  too  great  to  be  ovcrcume  in  that 
mode,  and  that  a  radical  change,  constructing  a  guviMiuiiciit  of 

9 


the  general  character  of  the  State  governments  so  far  as  the 
division  and  distribution  of  powers  were  concerned,  but  limited 
to  the  purposes  for  which  a  general  government  was  needed, 
was  the  only  effective  remedy  for  existing  evils.  As  the  mat- 
ter for  eonsideration  was  one  which  was  vital  to  the  happiness 
and  prosperity  of  the  country,  the  several  States  sent  some  of 
their  most  prominent  men  as  delegates  to  the  Convention  ;  and 
this  august  body  continued  in  session  nearly  four  months, 
forming  and  maturing  the  plan,  and  proceeding  with  the 
most  praiseworthy  care  and  caution.  All  matters  in  which 
a  dillcrcnce  of  opinion  existed  were  fully  debated  and  con- 
sidered, and  the  several  propositions  were  submitted  to  the 
"  Committee  of  Detail,"  which  not  only  revised,  but  carefully 
collated  and  arranged,  the  different  parts  of  the  proposed  in- 
strument. 

When  the  work  was  completed,  copies  of  it  were  furnished  to 
the  several  States  and  to  Congress,  with  a  letter  in  which  are 
these  significant  paragraphs,  viz. :  "  It  is  obviously  impracti- 
cable, in  the  federal  government  of  these  States,  to  secure  all 
rights  of  independent  sovereignty  to  each,  and  yet  provide  for 
the  safety  and  interest  of  all."  "  In  all  our  deliberations  on 
this  subject,  we  kept  steadily  in  our  view  that  which  appeared 
to  us  the  greatest  interest  of  every  true  American,  —  the  con- 
solidation of  the  Union,  —  in  which  is  involved  our  prosperity, 
felicity,  safety,  perhaps  our  national  existence."  Many  per- 
sons feared  that  the  powers  proposed  to  be  granted  were  too 
great,  and  that  there  was  danger  that  the  new  government 
would  swallow  up  the  State  organizations,  the  very  thing  of  all 
others  which  it  was  not  designed  to  accomplish.  It  underwent 
a  most  searching  and  critical  analysis.  Messrs.  Hamilton,  Mad- 
ison, and  Jay,  in  a  series  of  papers  (most  of  which  were  written 
by  the  two  gentlemen  first  named)  which  have  since  been  col- 
lected under  the  title  of  "  The  Federalist,"  and  form  a  stand- 
ard commentary  on  the  Constitution,  gave  it  a  very  powerful 


support,  and  probably  saved  it  from  rejection.*  In  several  of 
the  conventions  of  the  people  of  the  diiferent  States  to  which  it 
was  submitted  for  ratification,  there  were  long  debates  upon  its 
general  character,  and  upon  particular  parts  of  it,  and  in  many 
it  was  ratified  by  but  small  majorities,  mainly  from  the  fear, 
before  suggested,  that  too  much  of  the  power  of  the  States 
would  be  surrendered  by  its  adoption. 

This  brief  reference  to  the  history  of  the  formation  and  rati- 
fication of  the  Constitution  may  serve  to  show  that  we  should 
hold  fast  to  the  government  which  it  has  provided,  and  abide 
by  the  constitutional  obligations  which  it  imposes  upon  us. 
Surely  we  cannot  hope  that  more  favorable  circumstances  will 
occur  for  the  dispassionate  formation  of  a  new  Constitution,  or 
that  the  construction  of  such  an  instrument  Mill  be  committed 
to  wiser  or  more  patriotic  men.  If  the  present  government  is 
subverted,  either  by  a  secession  of  parts  or  by  a  usurpation  of 
powers  belonging  to  the  States,  who  shall  assure  us  that  the 
process  of  disintegration,  or  usurpation,  once  begun,  will  not 
end  in  the  entire  destruction  of  the  republic  ? 

It  would  seem,  at  first,  that  the  general  principles  of  an  in- 
strument which  had  been  subjected  to  such  an  ordeal,  and  to 
such  numerous  and  most  able  expositions,  must  by  the  time  it 
was  fairly  adopted  have  been  very  fully  understood.  But  it  is 
quite  evident  that  the  subject  was  not  exhausted. 

The  compendium  of  judicial  decisions  upon  different  parts 
of  the  Constitution,  more  particularly  relating  to  the  jurisdic- 

*  In  the  edition  of  this  work  now  in  the  library  of  the  L:iw  Scliooi  of  Harvard 
College,  some  unknown  and  unauthorized  annotator  has  entered,  in  j)eneil,  imme- 
diately before  the  first  number,  this  important  pieee  of  information,  viz.  :  "  This 
number  was  written  by  A.  Hamilton,  on  a  small  writinf,'-desk  belonginf;  to  Mrs. 
Hamilton,  and  sent  to  her  from  England  by  her  sister,  whilst  on  his  passage  up  tlic 
North  River  in  a  small  sloop.  The  authentieity  of  this  is  indisputable.  Any  one  ask- 
ing to  see  the  desk  can  be  accommodated  at  Barnum's  Museum.     Price,  25  cents." 

We  print  the  note  for  the  benefit  of  persons  curious  in  such  matters.  They  can 
doubtless  find  the  locality  indirated  ! 


8 

tioii  and  practice  of  the  courts,  by  Thomas  Sergeant,  was  pub- 
lished in  1822.  A  second  edition,  under  a  slightly  varied  title, 
with  additions  and  improvements,  appeared  in  1830. 

The  first  edition  of  Mr.  Rawle's  "  View  of  the  Constitution  " 
was  published  in  1825.  This  work  is  of  a  more  general  and 
speculative  character.  It  is  to  be  noted  that  in  his  final 
chapter,  entitled,  "Of  the  Permanence  of  the  Union,"  the 
author,  regarding  the  Constitution  as  a  mere  compact,  —  and 
without  sufficient  reference  to  the  circumstances  showing  that, 
if  it  were  regarded  as  a  compact,  it  was  indissoluble,  consti- 
tuting a  government  which  was  to  be  permanent,  —  distinctly 
admits  the  right  of  the  people  of  a  State  to  secede  from  the 
Union,  and  says  that  "  secessions  may  reduce  the  number  to 
the  smallest  integer  admitting  combination."  But  he  impairs 
somewhat  the  force  and  effect  of  his  own  positions  in  this  re- 
spect, when  he  says,  in  the  same  chapter :  "  We  may  con- 
template a  dissolution  of  the  Union  in  another  light,  more 
disinterested  but  not  less  dignified,  and  consider  whether  we 
are  not  only  bound  to  ourselves,  but  to  the  world  in  general, 
anxiously  and  faithfully  to  preserve  it "  ;  —  adding,  after  a  re- 
mark or  two :  "  In  every  aspect,  therefore,  which  this  great 
subject  presents,  we  feel  the  deepest  impression  of  a  sacred 
obligation  to  preserve  the  union  of  our  country ;  we  feel  our 
glory,  our  safety,  and  our  happiness  involved  in  it ;  we  unite 
the  interests  of  those  who  coldly  calculate  advantages  with 
those  who  glow  with  what  is  little  short  of  filial  affection ;  and 
we  must  resist  the  attempt  of  its  own  citizens  to  destroy  it, 
with  the  same  feelings  that  we  should  avert  the  dagger  of  the 
parricide."  Probably  we  should  feel  ourselves  authorized  to 
"  avert  the  dagger  of  the  parricide  "  by  a  little  wholesome 
coercion,  sufficient  to  prevent  the  commission  of  the  crime, 
and  to  inculcate  upon  him  a  seasonable  lesson  in  regard  to  his 
rights  and  duties ;  and  this  is  what  we  propose  to  do  with  the 
Secessionists,  in  the  fulfilment  of  our  "  sacred  obligation  to 
preserve  the  union  of  our  country." 


In  1833  Mr.  Justice  Story  published  an  elaborate  treatise 
upon  the  Constitution,  in  three  octavo  volumes.  The  general 
course  of  the  work  is  a  statement  of  the  different  provisions 
of  the  Constitution,  and  of  the  decisions  bearing  upon  it,  with 
discussions  upon  the  points  which  had  been  controverted  or 
considered  before  that  period.  Many  of  the  important  cases 
founded  upon  the  clause  conferring  upon  Congress  the  power 
to  regulate  commerce,  have  arisen  since  its  publication,  and 
the  greater  portion  of  those  involving  the  discussion  of  slavery 
also.  An  abridgment  of  it  is  used  as  a  text-book  for  colleges 
and  the  higher  schools.  But  the  closing  paragraph  of  a  review 
of  the  work,  in  the  July  number  of  the  American  Jurist  of  that 
year,  shows  the  reviewer  to  have  been  no  prophet  when  he 
said  :  "  The  work  is  of  the  very  highest  importance,  as  bearing 
both  upon  legislation  and  upon  jurisprudence,  since  it  presents 
the  subject  of  constitutional  law  so  luminously  before  the 
community  that  it  will  be  scarcely  possible  that  any  question 
henceforth  arising  on  the  subject  should  be  superficially 
treated  either  in  legislative  debate  or  forensic  argument." 

The  book  of  Mr.  President  Duer  contains  a  valuable  course 
of  lectures  upon  the  fundamental  principles  of  the  Constitu- 
tioii,  and  the  powers  of  the  federal  government ;  but  it  is  not 
our  purpose  to  speak  at  large  of  its  merits  at  the  present  time. 

Somewhat  of  the  character  of  the  speech  of  Mr.  Conway 
may  be  learned  from  a  single  paragraph  which  follows :  — 

"  The  wish  of  the  masses  of  our  people  is  to  conquer  the  seceded 
States  to  the  authority  of  the  Union,  and  hold  them  as  subject  prov- 
inces. Whether  this  will  ever  be  accomplished,  no  one  can,  of  course, 
confidently  foretell  ;  but,  in  my  judgment,  until  this  i)urpose  is  avowed, 
and  the  war  assumes  its  true  cliaracter,  it  is  a  mere  juggh',  to  be  turned 
this  way  or  that,  —  for  slavery  or  against  it,  —  as  the  varying  accidents 
of  the  hour  may  determine." 

The  innumerable  speeches,  in  Congress  and  out  of  Congress, 
within  the  last  few  years,  may  serve  to  show  with  what  dih- 


10 

gcnce,  if  not  with  what  success,  constitutional  law  has  been 
recently  studied.  If  the  speech-makers  have  not  put  the 
authors  of  the  Federalist  to  shame,  by  their  more  recondite 
researches  into  the  mysteries  and  rules  of  constitutional  con- 
struction, they  have  at  least  shown  that  there  may  be  expositions 
of  the  provisions  of  the  Constitution  of  which  Hamilton,  Mad- 
ison, and  Jay  never  had  any  conception  ;  and  it  is  in  the  spirit 
of  the  extract  from  the  speech  of  Mr.  Webster  quoted  at  the 
head  of  this  article  tliat  we  propose  to  set  down  in  brief  words 
certain  propositions  of  constitutional  law,  having  immediate 
reference  to  subjects  which  now  agitate  and  convulse  the  coun- 
try ;  —  propositions  which  we  think,  in  the  language  of  John 
Quincy  Adams  on  another  occasion,  "  will  stand  the  test  of 
talents  and  of  time."  AVe  commend  them  to  the  special  con- 
sideration of  those  who,  having  no  selfish  interest  to  subserve, 
and  no  passionate  hostility  to  be  gratified,  are  sincerely  at- 
tached to  the  Constitution.  To  those  who  are  desirous  of  sub- 
verting it,  in  some  part,  so  as  to  subserve  their  own  notions 
and  purposes,  some  of  them  of  course  will  be  distasteful. 
We  cannot  expect  to  convince  those  who  are  predetermined 
against  conviction. 

The  people  dwelling  along  the  western  shore  of  the  Atlantic 
Ocean,  from  the  Bay  of  Fundy  to  the  Territory  of  Florida,  were 
organized  as  Colonies  of  Great  Britain,  thirteen  in  number, 
iindcr  charters,  grants,  and  commissions,  each  being  a  distinct 
and  separate  colonial  government,  having  its  representative 
assembly,  its  executive,  and  judiciary,  and  no  one  having  any 
right  to  interfere  in  the  affairs  of  any  other.  In  those  Colonies 
slavery  existed,  regulated  of  course  by  tlie  laws  of  the  several 
Colonies,  subject  to  the  control  of  the  British  government. 

A  controversy  arose  between  some  of  those  Colonies  and  the 
mother  country,  in  which  they  made  common  cause,  and  united 
for  the  common  defence  through  the  organization  of  a  Con- 
gress of  deputies,  who  acted  at  first,  and  mainly,  through 


11  ^ ' 

recommendations  to  the  people  of  the  several  Colonics,  but 
made  divers  provisions  for  the  common  defence  and  for  the 
carrying  on  of  the  war. 

This  Congress  issued  the  Declaration  of  Independence,  as 
the  act  of  the  people  of  the  thirteen  Colonies,  in  which  their 
grievances  were  set  forth  ;  and  it  was  solemnly  published  and 
declared,  in  the  terms  of  a  resolution  previously  adopted,"  that 
these  united  Colonies  are,  and  of  right  ought  to  be,  free  and 
independent  states."  In  its  introduction  it  speaks  of  those  in 
whose  behalf  it  is  made  as  "  one  people."  The  Declaration 
asserted  certain  general  political  truths,  without  attempting 
to  set  forth  the  limitations,  qualifications,  and  conditions  to 
which  the  administration  of  human  affairs,  under  diverse  cir- 
cumstances, must  subject  them.  It  has  never  been  recognized 
as  a  constitutional  Bill  of  Rights. 

At  the  time  of  the  Declaration,  the  new  States  were  bound 
together  by  the  previous  union  of  the  Colonies,  through  the    Vit)  OjlV) 
organization  of  the  Congress,  and  they  continued  so  bound  by  ^' 

the  pledge  of  the  Declaration  itself,  and  by  measures  which 
were  taken  to  effect  a  perpetual  union  under  Articles  framed 
for  that  purpose.  The  terms  of  such  perpetual  union  were 
agreed  upon  and  set  forth  in  certain  "  Articles  of  Confedera- 
tion and  Perpetual  Union  between  the  States,"  which  gave  to 
•  Congress  certain  enumerated  powers,  partly  legislative,  execu- 
tive, and  judicial,  but  of  a  very  limited  and  imperfect  charac- 
ter. The  last  Article  was  in  these  words  :  "  Every  State  shall 
abide  by  the  determinations  of  the  United  States  in  Congress 
assembled,  on  all  questions  which  by  this  Confederation  are 
submitted  to  them.  And  the  Articles  of  this  Confedenitlou 
shall  be  inviolably  observed  by  every  State,  and  the  Union 
shall  be  perpetual ;  nor  shall  any  alteration  at  any  time  here- 
after be  made  in  any  of  them,  unless  such  alteration  be 
agreed  to  in  a  Congress  of  the  United  States,  and  be  after- 
wards confirmed  by  the  legislatures  of  every  State."     There 


^  12 

was  no  provision  for  a  dissolution  of  the  Union  thus  formed, 
and  of  course  no  right  of  secession  from  the  Confederation. 

These  Articles  limited  and  abridged  the  sovereignty  of  the 
several  States,  to  the  full  extent  to  which  they  conferred  pow- 
ers iipon  Congress,  and  also  by  certain  express  provisions  for 
tliat  purpose.  Several  of  the  new  States,  from  time  to  time, 
furmed  constitutions  for  their  own  government.  This  State 
action  was,  or  became,  subject  to  all  the  limitations  arising 
under  the  Articles  of  Confederation,  but  subject  only  to  those 
limitations.  The  general  principles  set  forth  in  the  Declara- 
tion of  Independence  are  not  admitted  as  limitations  upon 
State  authority.  On  the  contrary,  anything  found  in  the  State 
constitutions  which  may  be  supposed  to  conflict  with  the  prin- 
ciples asserted  in  the  Declaration,  must  be  regarded  as  a  lim- 
itation or  qualification  of  those  principles,  required  by  the 
particular  circumstances  of  the  community  forming  its  consti- 
tution,—  that  constitution  being  the  supreme  law  of  the  State, 
except  so  far  as  it  was  limited  and  controlled  by  the  provisions 
of  the  Articles  of  Confederation,  and  subsequently  by  the  Con- 
stitution of  the  United  States. 

By  the  treaty  of  peace.  Great  Britain  acknowledged  the 
independence  of  the  United  States,  and  defined,  or  attempted 
to  define,  the  boundaries  between  her  and  them.  The  general 
boundaries  of  the  United  States  were  the  Atlantic  Ocean  on 
the  east,  the  Spanish  possessions  on  the  south,  the  Mississippi 
on  the  west,  and  the  British  possessions  on  the  north.  Contro- 
versies which  arose  between  some  of  the  States  respecting  the 
vacant  territory  within  the  foregoing  limits,  lying  eastward  of 
and  along  the  Mississippi, —  some  of  which  was  claimed  by  sev- 
eral of  them,  while  others  contended  that  it  should  be  regarded 
as  a  fund  for  the  benefit  of  all, —  were  settled  by  the  cession, 
by  Virginia  and  other  States,  of  the  territory  northwest  of  the 
Ohio  River  to  the  United  States,  and  by  other  cessions.  The 
present  State  of  Vermont  was  claimed  by  New  Hampshire  and 


13 

New  York  ;  and  the  inhabitants  of  that  district  contended  for 
their  right  to  admission  into  the  Union  as  an  independent 
State  ;  but  the  United  States  claimed  nothing  there. 

The  Articles  of  Confederation  contained  a  provision  by 
which  Canada,  acceding  to  the  Confederation,  and  joining  in 
the  measures  of  the  United  States,  was  to  be  admitted  into, 
and  entitled  to  the  advantages  of  the  Union  ;  l)ut  no  other 
Colony  was  to  be  admitted  unless  the  admission  was  agreed  to 
by  nine  States.  There  was  no  provision  looking  to  the  possi- 
ble admission  of  any  territory  not  a  colony  of  Great  IJritain, 
and  there  was  a  provision  that  no  State  should,  without  the 
consent  of  the  Congress,  enter  into  any  conference,  agreement, 
alliance,  or  treaty  with  any  king,  power,  or  state. 

The  Ordinance  of  1787,  and  conditions  in  the  cessions  of 
other  territory  to  the  United  States,  determined  the  status  of 
all  the  territory  belonging  to  the  United  States  in  regard  to 
the  admission  of  slavery.  Northwest  of  the  Ohio  it  was  exclud- 
ed by  the  Ordinance  ;  southwest,  it  was  admitted  by  conditions 
in  the  cessions  by  North  Carolina  and  Georgia.  The  policy  of 
nearly  all  the  States  at  this  time  was  antislavery.  Virginia 
voted  for  the  Ordinance  of  1787.  She  consented  that  the  dis- 
trict of  Kentucky  should  be  formed  into  a  new  State,  leaving 
the  inhabitants  to  the  freedom  of  their  own  will  in  that  respect. 
There  Was  no  attempt  to  control  the  action  of  any  State  in  ref- 
erence to  slavery  within  its  own  limits,  nor  any  assertion  of  a 
right  so  to  do. 

The  facts  stated  thus  far  show  very  clearly  that  there  was 
no  right  on  the  part  of  any  State,  or  of  the  people  of  any  State, 
to  control  or  interfere  with  slavery  in  any  other  State.  Nor 
was  there  any  power  in  Congress  to  regulate,  or  interfere  with, 
the  domestic  institutions  of  any  State.  It  is  eciualiy  clear  that 
there  was  no  right,  legal  or  moral,  on  the  part  of  any  State,  or 
the  people  of  any  State,  or  any  of  them,  to  have  slavery  I'x- 
tendcd  or  diffused  beyond  the  limits  of  such  State,  or  to  hohl 
8 


14 

slaves  beyond  State  limits,  except  according  to  the  conditions 
in  tlie  grants  of  territory  by  some  of  them  to  the  United  States. 
No  State  could,  consistently  with  the  Articles  of  Confederation, 
make  any  agreement  for  the  acquisition  of  territory  for  that  or 
any  other  purpose,  nor  was  there  any  express  provision  for  the 
acquisition  of  territory  by  Congress. 

Under  these  circumstances,  and  contemporaneous  with  some 
of  tljem,  the  Constitution  was  framed.     It  was  designed  to 
remedy  defects  which  existed  in  the  permanent  and  indissolu- 
ble union  under  the  Confederation,  and  was  declared  to  be  the 
act  of  the  people  of  the  United  States,  for  the  purpose  of  form- 
ing a  more  perfect  Union  for  themselves  and  for  their  poster- 
ity.   It  provides  for  the  organization  of  a  government  complete 
in  all  its  parts,  legislative,  executive,  and  judicial,  —  a  sover- 
eignty in  form,  as  well  as  in  effect,  for  all  the  purposes  within 
tlie  scope  of  its  pqwers,  —  the  chief  of  which  powers  are  most 
emphatically  for  national  purposes.     And  it  confers  upon  the 
United  States  rights  of  sovereignty,  to  be  exercised  within  the 
limits  of  the  several  States,  which  from  their  very  nature  can- 
not be  revoked  or  resumed  by  a  State,  or  the  people  of  a  State, 
or  ofany  number  of  States,  except  by  amendment  of  the  Con- 
stitution or  by  revolution.     From  the  terms  of  the  instrument, 
from  the  nature  of  the  government  which  it  created,  and  from 
the  rights  thus  granted,  having  the  character  of  "  eminent  do- 
main," it  is  certain  that  there  can  be  no  right  of  secession. 

The  Constitution  was  adopted  and  ratified  not  by  the  peo- 
ple of  the  United  States  as  a  general  community,  for  until  its 
adoption  there  was  no  such  community ;  and  moreover  by  its 
terms  it  wa^wjien  ratified  by  the  people  of  nine  States,  to  be 
*JL^_-CO".s*it^ti?^..?^.r.t^^^^  But  it  was  ratified  by  the 

people  of  the  several  States,  acting  primarily,  and  not  by  State 
authority  under  the  State  constitutions ;  and  by  its  adoption 
they  became  one  people  for  the  purposes  therein  specified. 
With  some  delay  it  was  ratified  by  the  people  of  all  the  States, 
and  thus  became  the  paramount  law  for  all. 


15    ^ 

111  construing  the  Constitution  we  must  resort  to  the  ordi- 
nary rules  for  the  interpretation  of  laws.  Its  construction  is 
not  to  be  determined  by  what  Mr.  Hamilton,  or  others  of  his 
school,  desired,  or  what  Mr.  Jefiferson  and  his  adherents,  at  a 
later  day,  contended  had  been  accomplished.  If  such  individ- 
ual declarations  may  be  adverted  to,  for  the  purposes  of  con- 
struction, they  have  but  a  limited  significance.  So  far  as  the 
writings  of  Madison,  Hamilton,  and  others,  explaining  their 
views  of  the  meaning  and  operation  of  the  different  provisions, 
were  diffused  among  the  people  before  its  adoption,  the  con- 
struction thus  presented  is  entitled  to  great  weight,  unless 
there  is  something  to  control  it,  from  the  presumption  tliat 
such  was  the  received  opinion  of  the  time.  Contemporaneous 
construction  is  of  very  high  authority. 

It  is  not  j)roper  to  call  the  Constitution  a  compact.  Its 
terms^ts  nature,  and  the  powers  granted  by  it,  show  it  to  be 
something  more  than  a  compact.  If,  however,  it  is  to  be  re- 
garded as  a  compact,  this  will  not  make  any  difference  in  rela- 
tion to  any  of  the  main  principles  involved  in  present  con- 
troversies^  Regarded  as  a  compact,  it  is  a  permanent  oiiGj 

constituting  an  indissoluble  union,  with  powers  of  sovereignty 
which  cannot  be  revoked  or  resumed.  Whether  construed  as 
an  organic  law,  or  as  a  compact,  therefore,  it  constituted  a 
nation,  for  the  purposes  for  which  it  was  formed,  leaving  to 
the  States  or  people  the  powers  not  granted,  either  expressly 
or  by  implication. 

Th_e^  prqyisiqii^  of  the  Cojistitutip^^  what  shall  be 

regarded  as  treason  against  the  United  States  shows,  not  only 
that  the  United  States  constitute  a  government,  but  that  it  is 
one  to  which  allegiance  is  due.  And  the  Constitution  being 
the  supreme  law  of  the  land,  the  allegiance  due  under  it  is  the 
paramount  allegiance. 

The  Constitution  loft  slavery  just  as  it  round  it,  cxct^pt  in 
two  or  three  particulars.     It  piuvidcd  fur  an  a|»|Kjrtiuiimciit  of 


16/ 

representation  upon  a  certain  slave  basis ;  but  this  did  not 
alter  the  status  of  the  slave,  or  give  Congress  any  power  to 
change  or  modify  it.  It  gave  authority  to  Congress  to  prohibit 
the  slave-trade  after  1808,  and  this  authority  has  been  exer- 
cised. It  imposed  the  duty  of  delivering  up  fugitive  slaves. 
Constitutionally  and  legally  speaking,  it  is  as  right  that  this 
duty  should  be  performed,  as  it  is  that  the  power  to  prohibit 
the  slave-trade  should  be  exercised.  Without  the  Constitution, 
neither  the  power  nor  the  duty  would  have  existed.  The  in- 
strument which  confers  the  one,  equally  imposes  the  other. 
To  exercise  the  power,  and  refuse  to  perform  the  duty,  is  not 
merely  unconstitutional ;  it  is  a  fraud.  All  State  laws,  there- 
fore, enacted  with  a  design  of  evading  the  performance  of  the 
duty,  are  a  violation  of  a  constitutional  obligation,  and  can 
neither  be  justified  by  law  nor  excused  by  any  code  of  morals. 
The  Constitution  binds  the  United  States,  on  application,  to 
protect  each  State  against  domestic  violence,  which  may  in- 
clude a  servile  insurrection ;  but  this  does  not  change  the 
relation  of  master  and  slave. 

Although  the  Constitution  was  formed  for  the  States  as  then 
existing,  and  with  reference  to  the  territories  then  belonging 
to  the  United  States,  and  their  admission  into  the  Union  as 
States,  and  contains  no  direct  provision  anticipating  the  acqui- 
sition of  territory,  it  is  clear  that,  through  the  power  to  make 
treaties  and  war,  territory  may  be  acquired.  Any  territory 
thus  acquired  belongs  to  the  United  States.  The  United 
States  acquire  it,  and  not  any  State,  or  aggregation  of  States. 
There  is_no  tenancy  in  common,  and  of  course  no  partition. 
There  is  no  trusteeship,  for  there  is  no  interest,  legal  or  equi- 
table, in  any  State,  nor  any  use.  There  are  no  shares,  nor 
any  distribution  of  proceeds,  except  at  the  election  of  the 
United  States.  The  United  States  are  no  more  trustees  of 
territory  acquired  by  conquest,  than  they  were  trustees  of  the 
army  by  which  it  was  acquired ;  and  the  idea  of  such  a  trus- 


17  '  '-" 

teeship  would  be  an  absurdity  too  great  for  any  theorist  out  of 
an  insane  asylum.  The  army  by  the  action  of  which  the  con- 
C[uest_  is  made  is  the  instrument  of  the  United  States ;  the 
treaty  which  secures  it  is  made  byjjje  United  States  ;  the  title 
vests  in  the  United  States  ;  —  and  it  follows,  logically,  that  the 
acquisition  is  the  property  of  the  United  States.  The  people 
of  the  United  States,  as  a  general  community,  have  the  benefit 
of  it  for  the  purposes  for  which  the  general  government  was 
formed.  Such  territory  is  therefore  to  be  governed  and  dis- 
posed^of  for  the  benefit  of  the  United  States  as  a  whole,  and 
not  with  regard  to  the  interests  of  any  one  section. 

If  there  is  any  provision  in  the  Constitution  for  the  govern- 
ment of  such  territory,  it  is  in  the  general  clause  empowering 
Congress  "  to  dispose  of,  and  make  all  needful  rules  and  regu- 
lations_respecting,  the  territory  or  other  property  belonging  to 
the  United  States."  It  would  seem  that  this  clause  was  not 
intended  to  apply  to  subsequently  acquired  territory,  because 
the  Constitution  did  not  contem])late  and  make  i)rovision  for 
such  acquisition.  Whether  it  was  intended  to  apply  or  not  is 
inmiaterial,  for  Congress,  as  the  legislative  department,  must 
necessarily  exercise  such  a  power. 

If  it  is  for  the  interest  of  the  whole  community  tliat  slavery 
should  exist  in  any  Territory,  Congress  may  permit  it,  and 
there  is  no  power  elsewhere  to  control  the  action  of  Congress 
allowing  its  existence.  If  it  is  not  for  the  interest  of  the 
whole,  the  legislation  of  Congress  excluding  slavery,  during 
the  continuance  of  the  territorial  government,  is  equally  con- 
clusive. A  territorial  legislature  can  possess  no  power  except 
such  as  is  conferred  by  Congress. 

The  Supreme  Court  have  no  authority,  under  the  Constitu- 
tion, in  relation  to  subsequently  acquired  territory,  until  Con- 
gress shall  extend  the  jurisdiction  of  the  court  over  it.  The 
attempt  by  six  judges  of  that  court  to  control  this  subject  by 
a  judicial  decision,  was  a  gross  usurpation,  for  which  impeach- 


^18 

mcnt  and  removal  would  have  been  but  a  just  punishment. 
The  Constitution  itself  does  not  extend  over  such  territory. 
It  was  made  for  States,  not  Territories.  It  extends  the  right 
of  legislation  by  Congress  over  such  territory,  either  by  the 
express  clause  authorizing  Congress  to  make  rules  for  the 
Territories,  or  through  the  power  of  legislation  granted  to 
Congress,  which  is  the  only  power  applicable  to  territory  thus 
acquired,  until  legislation  has  brought  into  exercise  the  pow- 
ers of  the  other  departments  ;  —  except  that  territory  acquired 
by  conquest  may  be  governed  by  the  military  power  which 
made  the  acquisition,  until  such  legislation  is  had.  This 
shows  clearly  that  the  Supreme  Court  has  no  power  there, 
except  through  and  under  legislation  for  that  purpose. 

Tlie_Constitution  having  made  no  express  provision  for  the 
acquisition  of  territory  outside  of  the  limits  of  the  United  States, 
as  established  by  the  treaty  of  peace  in  1783,  the  clause  respect- 
ing the  right  of  Congress  to  admit  new  States  cannot  right- 
fully be  construed  to  apply  to  such  territory.  But  if  Congress, 
having  the  power  of  legislation,  passes  an  act  admitting  a 
State,  and  the  people  of  the  State  come  in  under  such  act, 
neither  the  executive  nor  judicial  department  can  control  and 
negative  such  admission.  If  such  State  is  a  slave  State,  it 
will  not  constitutionally  be  entitled  to  a  representation  on  the 
slave  basis  ;  but  here  again,  if  Congress  make  an  apportion- 
ment upon  that  basis,  no  other  department  can  gainsay  it. 

The  Constitution  empowers  Congress  to  declare  war;  to 
grant  letters  of  marque  and  reprisal ;  to  raise  and  support 
armies ;  to  provide  for  calling  out  the  militia  to  execute  the 
laws  of  the  Union,  to  suppress  insurrections,  and  to  repel  inva- 
sions. And  it  provides  that  the  United  States  shall  guarantee 
to  every  State  in  the  Union  a  republican  form  of  government. 
The  authority  and  duty  to  suppress  an  insurrection  are  to  be 
exercised  in  aid  of  the  legitimate  State  authority,  as  well  as 
for  the  assertion  of  the  authority  of  the  United  States.     It  is 


19 

as  much  the  duty  of  the  United  i^tates  to  intervene  in  aid  of  a 
State,  and  suppress  an  insurrection,  when  an  attempt  is  made 
to  subvert  the  State  authority,  or  when  there  is  a  usurpation  of 
the  State  authority,  as  it  is  to  suppress  an  insurrection,  the  ob- 
ject of  which  is  to  subvert  the  authority  of  the  United  States. 

The  United  States  have  no  authority  to  emancipate  the  slaves 
in  any  State,  except  as  it  may  be  done  in  the  suppression  of  an 
insurrection.  The  persons  who  rebel  may  be  piinished  through 
their  property,  and  in  determining  what  is  to  be  regarded  as 
property,  reference  may  be  had  to  the  laws  of  the  State  in  which 
the  offence  was  committed.  The  confiscation  of  slaves  may, 
therefore,  be  a  part  of  the  punishment  inflicted  for  such  of- 
fence.*    But  this  punishment  of  confiscation,  so  far  as  it  is  a 

*  A  writer  iu  a  Boston  daily  paper,  under  the  signature  of  G.  T.  C,  attempts  to 
maintain  that  there  can  be  no  confiscation  of  shives  as  a  punishment  for  treason, 
except  for  the  life  of  the  master.  In  support  of  this,  he  cites  the  clause  of  the  Con- 
stitution in  these  words :  "  The  Congress  shall  have  power  to  declare  the  punish- 
ment of  treason,  but  no  attainder  of  treason  shall  work  corruption  of  blood,  or  for- 
feiture, except  during  the  life  of  the  person  attainted."  He  proceeds  to  say  that 
"  the  term  attainder,  as  here  used,  is  synonymous  with  judgment  or  conviction ;  a 
sense  in  which  it  was  used  at  the  common  law,  where  the  judgment  of  guilty  was  to 
be  followed  by  forfeiture  of  lands  or  goods,  to  be  reached  by  a  subsequent  process 
claiming  the  property  of  the  convicted  or  attainted  traitor  for  the  king."  This 
shows,  on  the  part  of  the  writer,  a  great  confusion  of  ideas  in  regard  to  conviction  and 
judgment,  which,  in  relation  to  this  subject  matter,  are  entirely  distinct ;  and  also  in 
regard  to  the  forfeitures  which  were  peculiar  to  each.  There  is,  by  reason  of  this 
confusion,  a  mistake  in  regard  to  the  import  and  effect  of  the  constitutional  provis- 
ion, and  a  misapprehension  respecting  the  character  of  an  attainder,  and  the  conse- 
quent forfeiture.  By  the  attainder  mentioned  in  the  clause  of  the  Constitution  above 
cited  is  undoubtedly  meant  the  attainder  which  results  from  a  judgment  at  tlie  com- 
mon law,  and  not  a  bill  of  attainder  by  a  legislative  enactment.  The  writer  pro- 
ceeds to  say,  in  a  subsequent  paragraph  :  "  Suppose  you  forfeit  the  slaves  of  A  for 
treason.  If  you  mean  to  obey  the  Constitution,  whatever  extent  of  estate  A  had  in 
those  slaves,  you  can  take  only  an  estate  for  his  life."  Again  :  "On  the  terminntion 
of  A's  life,  his  heirs  or  his  creditors  have  a  title  in  those  slaves,  which  tiiey  can  assert, 
if  there  are  any  tribunals  in  the  land  to  adtninister  the  law  and  the  Constitution." 

We  were  somewhat  surprised  by  these  latter  jjropositions,  but  tiiey  arc  correct 
if  the  writer  can  only  show  that  slaves  are  real  estate  at  the  conmon  law.  The  attain- 
der spoken  of  in  the  clause  cited  from'  the  Constitution  being  sucli  atliiiiidcr  as, 


20 

civil  punishment,  must  be  meted  out,  in  the  same  manner  as 
other  punishments  are,  by  general  laws  for  trial,  conviction, 
and  judgment.  There  is  no  more  authority  to  declare,  by  a 
general  law,  that  the  slaves  of  all  rebels  shall  be  free,  without 
provision  for  a  trial  of  the  treason,  than  there  is  to  declare, 
summarily,  by  a  similar  law,  that  all  rebels  shall  be  hanged, 
without  any  provision  for  a  trial. 

The  military  commander  has  no  authority  to  emancipate  the 


accorJinj^  to  the  common  law,  results  from  a  judgment,  it  seems  clear  that  the  for- 
feiture, which  is  limited  by  the  Constitution  to  an  estate  for  life,  relates  to  the  same 
general  kind  of  property  which  was  forfeited  by  the  attainder  at  common  law ;  and 
the  language  of  the  constitutional  provision  indicates  that  this  was  real,  and  not  per- 
sonal property.  A  forfeiture  of  a  life  estate  in  personal  property,  of  which  the  traitor 
had  the  absolute  title,  would  certainly  be  an  anomaly.  But  it  is  clear  that  the  for- 
feiture on  attainder  of  treason  was  of  real  property  only,  lands,  and  interests  in  or 
rights  to  lands,  and  could  be  no  other ;  for  the  forfeiture  of  the  personal  property  of 
the  traitor  was  the  result  of  the  conviction,  which  preceded  the  judgment  and  the  at- 
tainder. To  ascertain  this  we  need  go  no  further  back  than  Blackstone's  Commen- 
taries, from  which  we  make  two  or  three  extracts. 

"  When  sentence  of  death,  the  most  terrible  and  highest  judgment  in  the  laws  of 
England,  is  pronounced,  the  immediate  inseparable  consequence  by  the  common  law 
is  attainder.  For  when  it  is  now  clear  beyond  all  dispute  that  the  criminal  is  no 
longer  fit  to  live  upon  the  earth,  but  is  to  be  exterminated  as  a  monster  and  a  liane 
to  human  society,  the  law  sets  a  note  of  infamy  upon  him,  puts  him  out  of  its  pro- 
tection, and  takes  no  further  care  of  him  than  to  see  him  executed.  He  is  thus  called 
attaint,  attinctus,  stained  or  blackened.  He  is  no  longer  of  any  credit  or  reputation  ; 
he  cannot  be  a  witness  in  any  court ;  neither  is  he  capable  of  performing  the  func- 
tions of  another  man,  for,  by  an  anticipation  of  his  punishment,  he  is  already  dead 
in  law.  This  is  after  judgment;  for  there  is  a  great  difference  between  a  man  con- 
victed and  attainted,  though  they  are  frequently,  through  inaccuracy,  confounded 
together.  After  conviction  only,  a  man  is  liable  to  none  of  these  disabilities,  for 
there  is  still  in  contemplation  of  law  a  possibility  of  his  innocence." 

"  The  consequences  of  attainder  are  forfeiture  and  corruption  of  blood For- 
feiture is  twofold ;  of  real  and  personal  estates.  First,  as  to  real  estates.  By 
attainder  in  high  treason  a  man  forfeits  to  the  king  all  his  lands  and  tenements  of 
inheritance,  whether  of  fee  simple  or  fee  tail,  and  all  his  rights  of  entry  on  lands  and 
tenements  which  he  had  at  the  time  of  the  offence  committed,"  &c.,  "  and  also  the 
profits  of  all  lands  and  tenements."  —  4  Blackstone's  Commentaries,  380,  381. 

"  There  is  a  remarkable  difference  or  two  between  the  forfeiture  of  lauds,  and  of 
goods  and  chattels.     Lands  are  forfeited  upon  attainder,  and  not  before ;  goods  and 


21 

slaves  except  as  a  part  of  his  military  operations,  and  these 
cannot  extend  beyond  the  actual  power  of  the  force  under  his 
command.  His  mere  proclamation  of  emancipation,  as  a 
means  of  suppressing  the  insurrection,  is  entirely  nugatory. 
So  far  as  his  military  array  extends,  so  far  martial  law  prevails, 
and  martial  law  supersedes,  for  the  time  being,  the  municipal 
law,  in  those  particulars  in  which  there  is  a  conflict  between 
them. 

chattels  are  forfeited  by  conviction.  Because  in  many  of  the  cases  where  goods  are 
forfeited  there  never  is  any  attainder,  which  happens  only  where  judgment  of  death 
or  outlawry  is  given  ;  therefore  in  those  cases  the  forfeiture  must  be  upon  conviction 
or  not  at  all ;  and  being  necessarily  upon  conviction  in  those,  it  is  so  ordered  in  all 
other  cases,  for  the  law  loves  uniformity."  —  4  Blackstone's  Commentaries,  387.  See 
also 'Coke  on  Littleton,  391  a;  Hawkins's  Picas  of  the  Crown,  Book  II.  Chap.  49  ; 

1  Chitty's  Crim.  Law,  Chap.  17  ;  1  Meeson  and  Welsby'sRep.  148;  Webster's  Diet., 
Attainder. 

It  appears,  however,  that  G.  T.  C.  regards  slaves  as  real  estate,  for  in  a  subse- 
quent paragraph  he  writes  thus:  "What  I  have  now  suggested  supposes  only  the 
simple  case  of  a  slave  owned  in  fee,  and  unencumbered  by  the  rebellious  master, 
whose  life  estate  is  all  that  can  be  forfeited  to  the  United  States,  while  the  reversion 
most  plainly  belongs  to  his  heirs." 

One  instance,  perhaps  more,  may  be  found  in  which  slaves  were  declared  to  be 
real  estate ;  but  this  was  for  the  purpose  of  descent,  dower,  &c.,  and  even  in  that  in- 
stance they  had  in  law  many  of  the  attributes  of  personal  estate.  1  Monroe's  Reports, 
28.  If  property,  they  are  from  their  very  nature  personal  property.  In  Vol.  III.  of  the 
United  States  Digest,  compiled  by  George  T.  Curtis,  Esq.,  tit.  Slaves,  I.,  decisions  are 
collected  showing  that  they  are  personal  estate,  as  follows,  viz. :  "  In  Virginia,  slaves 
are  held  as  chattels,  and  are  assets  in  the  hands  of  an  executor.     Walden  t.  Payne, 

2  Wash.  1."  "  Slaves  properly  come  under  the  appellation  of  '  personal  estate  '  in 
attachments.  Plumpton  v.  Cook,  2  A.  K.  Marsh.  450."  "  They  are  within  the  op- 
eration of  the  statute  of  frauds,  respecting  loans  of  '  goods  and  chattels.'  Withers  c. 
Smith,  4  Bibb,  170." 

A  slave  has  a  personal  character  when  he  is  indicted  for  murder.  He  is  not  real 
property  when  any  one  is  indicted  for  the  murder  of  him.  He  is  neither  a  fee  nor 
a  freehold  when  he  runs  away  and  his  master  claims  him  as  a  fugitive.  And,  upon 
quite  as  strong  reasons,  he  is  not  real  estate,  with  a  reversion  to  his  nuister's  heirs, 
upon  a  forfeiture  for  treason. 

The  Constitution  docs  not  limit  the  power  of  Congress  in  relatioti  to  the  eommoii- 
law  forfeiture  which  accrues  upon  conviction,  nor  to  any  forfeiture  of  j>ersonal 
estate. 

4 


22 

If,  under  the  operation  of  martial  law,  the  duty  which  the 
slave,  under  the  State  law,  owes  to  his  master,  is  terminated 
for  the  time  being,  and  the  slave  avails  himself  of  such  eman- 
cipation to  secure  his  freedom,  by  a  transit  to  a  free  State,  the 
clause  of  the  Constitution  relative  to  fugitiyes  from  service 
cannot  rightfully  be  invoked  to  enforce  a  return,  because  it  is 
not  applicable  to  the  case  of  slaves  whose  duty  of  service  is 
terminated,  and  whose  masters  have  thereupon  lost  all  custody 
and  control  over  them.  When  the  master  ceases  to  provide 
for  the  slave,  he  may  provide  for  himself.  If  the  master  has 
any  claim,  it  is  upon  the  government,  whose  military  operations 
terminated  the  relation  between  him  and  his  slave  for  the  time 
being,  so  that  the  slave  was  left  at  liberty.  A  rebel  master 
could  maintain  no  such  claim.  If  a  master  abandons  the  con- 
trol of  his  slave,  and  he  avails  himself  of  his  liberty,  he  cannot 
rightfully  be  sent  back  under  the  constitutional  provision.  But 
in  either  case,  if  the  slave  remains,  and  the  martial  law  ceases, 
or  the  master,  in  case  of  his  flight,  returns  and  resumes  his 
control,  the  emancipation  will  probably  be  a  temporary  one  ;  — 
as  no  right  to  freedom  could  afterward  be  asserted  under  the 
laws  of  the  United  States.  The  operation  of  the  martial  law 
would  be  only  temporary  upon  the  subject-matter,  and  would 
not,  under  such  circumstances,  effect  a  permanent  emancipa- 
tion. 

It  is  no  part  of  the  duty  of  the  commander  or  officers  of  a 
military  force  to  assist  the  people  of  any  State  into  which  that 
force  may  enter  in  maintaining  the  possession  of  their  slaves, 
any  more  than  it  is  their  duty  to  aid  them  in  holding  any  other 
species  of  property,  or  other  servants.  On  the  contrary,  the 
commander  may  require  the  services  of  the  slaves  in  the  sup- 
pression of  the  insurrection,  in  all  cases  where  he  could  re- 
quire the  aid  of  persons  or  property  for  such  service.  And 
this  extends  oven  to  placing  arms  in  their  hands,  and  using 
them  as  a  part  of  his  military  force,  if  the  exigency  of  the  case 


23 

require  it;  of  which  he  must  judge,  as  he  judges  of  other 
modes  of  condiictiiig  the  war  in  the  suj)prcssioii  of  the  rebel- 
lion. "Whether  the  master  will  have  a  claim  upon  the  govern- 
ment for  indemnity  must  depend  upon  the  circumstances  of 
each  particular  case. 

A  State  is,  or  can  be,  foreign  to  the  United  States,  only  by  a 
successful  revolution.  It  cannot  be  made  foreign,  under  the 
Constitution,  either  by  the  people  of  the  State,  or  by  the  action 
of  Congress,  or  by  that  of  the  armies  of  the  United  States. 

The  power  to  declare  war  and  grant  letters  of  marque  and 
reprisal  cannot  be  exercised  against  a  State,  and  the  United 
States  and  a  State  cannot  be  brought  into  antagonism,  consist- 
ently with  the  Constitution. 

No  Slate.,  as  such,  can  be  in  insurrection.  The  people  of  a 
State,  or  a  portion  of  them,  may  rebel,  and  civil  war  may 
ensue.*     The  rebels  may  usurp  State  authority,  either  by  the 

*  Perhaps  in  this  connection  we  ought  to  pay  "  the  cold  respect  of  a  passing 
glance"  to  what  appeared  as  an  editorial  in  a  Boston  daily  newspaper,  assailing  our 
article  respecting  Habeas  Corpus  and  Martial  Law,  in  the  number  for  October,  1861. 

There  is  a  kind  of  argumentation  in  which  we  are  not  inclined  to  participate, 
and  for  which  we  have  no  respect,  since  it  consists  in  grave  misstatements  of  the 
positions  maintained  by  others,  followed  by  an  attempt  to  controvert  the  positions 
thus  assumed  for  them. 

The  writer  of  that  editorial  placed  himself  beyond  the  pale  of  fair  discussion  when 
he  said  :  "  The  return  to  the  writ,  a  copy  of  which  is  before  us,  presents  only  the 
naked  question  whether  the  President  of  the  United  Slates  can  suspend  the  writ  of  habeas 
corpus  without  an  act  of  Congress?  The  Reviewer  says  he  can  do  so  in  lime  of  war." 
Again  :  "  If  the  Reviewer  means  to  assert,  as  we  presume  he  does,  that  any  or  all  of 
these  things  constituted  a  state  of  war  in  legal  acceptation  in  the  Stale  of  Maryland, 
so  that  all  its  citizens  were  under  viarlial  law,  as  the  Kc viewer  lU'lincs  it,  lie  means 
to  assert  a  proposition  which  lie  would  have  done  well  to  have  sii|iported  by  some 
show  of  argument."  And  again  :  "According,  then,  to  this  Reviewer,  a  proclama- 
tion of  the  President,  (Congress  not  being  in  session,  and  no  war  foreign  or  civil 
declared  by  them,)  calling  out  the  militia  to  suppress  an  insurrection  in  certain 
States, /)/aces  every  other  State,  in  which  any  jiortion  of  ihosf  forces  may  hapjtrn  to  be 
moving  or  resting,  under  martial  law,  as  dcdned  by  the  Reviewer  himself;  or,  in  other 
words,  it  creates  a  state  of  tear  throughout  the  country,  where  linn   arc  any  siuh  troops 


24 

complicity  of  those  who  held  office  under  the  State,  or  by  turn- 
ing them  out,  and  placing  others  in  their  stead.  But  the  war 
will  be  between  the  insurgents  and  the  government.  The 
State  cannot  commit  treason,  any  more  than  a  county  or  a 

e»;en  in  transitu.  This  doctrine  rests  for  the  present  on  the  authority  of  the  North 
American  Review." 

The  first  of  the  above  extracts  certainly  presents  itself  as  a  very  gross  misrepre- 
sentation when  taken  in  connection  with  a  paragraph  contained  in  an  extract  from  our 
article  in  the  editorial  itself,  and  which,  the  writer  therefore  must  be  presumed  to  have 
read.  It  is  in  these  words  :  "  Whether  the  President  possesses  the  power  to  order  or  author - 
ize'it  [the  suspension  of  the  writ  oi  habeas  cm-pus]  as  an  incident  to  his  office  of  Com- 
mander-in-Chief of  the  army  and  navy,  or  whether  he  has  it  as  an  incident  to  his 
dutv  to  see  the  laws  faithfully  executed,  we  do  not  propose  to  inquire.  The  opinion  of 
the  learned  Attorney-General  upon  the  latter  point  is  already  before  the  public,  and 
we  do  not  deem  the  settlement  of  those  questions  necessary  to  our  present  purpose."  And  in 
accordance  with  the  statements  thus  made,  we  carefully  forbore  to  express  any 
opinion  upon  that  subject,  arguing  the  right  of  General  Cadwalader  to  refuse  to  pro- 
duce Merryman  upon  other  and  entirely  different  grounds,  saying  that,  "  in  time  of 
actual  war,  whether  foreign  or  domestic,  there  may  be  justifiable  refusals  to  obey 
the  command  of  the  writ  without  any  act  of  Congress,  or  any  order  or  authorization 
of  the  President,  or  any  State  legislation  for  that  purpose  ;  and  the  principle  upon 
which  such  cases  are  based  is,  that  the  existence  of  martial  law,  so  far  as  the  opera- 
tion of  that  law  extends,  is,  ipso  facto,  a  suspension  of  the  writ." 

Then,  again,  in  relation  to  the  statements  that  we  maintained  that  all  the  citizens 
of  Maryland  ivere  under  martial  law,  or  even  that  war  existed  there,  and  that  calling 
out  the  militia  to  suppress  an  insurrection  in  certain  States  places  every  other  State,  in 
ichich  any  portion  of  those  forces  may  happen  to  be  moving  or  resting,  under  martial 
law,  there  is  not  the  least  possible  excuse  for  such  a  misrepresentation.  Having 
come  to  the  conclusion  that  the  existence  of  martial  law,  so  far  as  it  extends,  oper- 
ated as  a  suspension  of  the  writ,  we  proceeded  to  the  question,  "  Was  martial  law  in 
existence  at  Fort  McHenry  at  the  time  when  the  writ  was  issued  and  the  return 
made  ? "  We  neither  inquired  whether  all  the  citizens  of  Maryland  were  under 
martial  law,  nor  indicated  an  opinion  that  they  were  so.  Nor  did  we  imply  that 
martial  law  existed  when  and  where  Merryman  committed  the  acts,  whatever  they 
were,  for  which  he  was  arrested.  We  stated  our  position  in  these  express  words  : 
"  Now,  it  may,  we  think,  be  laid  down  as  a  safe  principle,  that  in  time  of  war  any 
fort  or  camp  occupied  by  a  military  force,  for  the  purposes  of  the  war,  is  ipso  facto, 
without  any  special  proclamation,  under  the  government  of  martial  law,  such  as  we 
have  described  it.  And  the  same,  in  our  opinion,  as  at  present  advised,  is  equally 
true  of  any  column  of  soldiers  mustered  into  active  service  for  the  like  purpose, 
whether  on  the  march  or  at  rest.    It  is  not  necessary  to  speak  of  soldiers  mustered 


city  in  a  State  commits  treason,  when  the  pcoj)lc  of  that  connly 
or  city  rise  in  insurrection.  Tlie  analogy  between  a  State  and 
a  county  or  city  holds  good  thus  far,  although  it  may  not  in 
some  other  respects.     There  can  of  course  be  no  punishment 

into  the  service  of  the  government,  but  stationed  at  a  distance  for  the  purpose  of 
being  called  into  active  service  when  occasion  may  rc(|uire.  Thcv  may,  or  tlicy  may 
not,  be  under  government  of  military  law  only,  as  in  time  of  peace.  But  this  cannot 
be  said  of  troops  actively  engaged  in  the  service  of  the  government.  Whether  those 
troops  are  in  the  face  of  the  enemy  in  battle  array,  or  whether  they  are  merely  garri- 
soning a  fort  to  aid  thereby  in  suppressing  a  rebellion,  or  whether  they  are  opening 
and  holding  the  avenues  by  which  the  passage  of  other  troops  to  the  theatre  of  active 
war  is  to  be  facilitated,  the  law  which  governs  the  place  where  they  are  is  martial,  and 
not  municipal." 

Tliis  character  of  misrepresentation  runs  through  the  paper  so  far  as  it  relates  to 
our  article  ;  but  we  do  not  propose  to  follow  this  matter  further.  Oiu-  inducement  to 
refer  to  the  paper  at  this  time  was  what  seemed  to  be  the  course  of  its  argument 
that  there  was  no  "war,"  because  war  had  not  been  declared  by  Congress.  In  one  of 
the  paragraphs  above  quoted,  we  find,  "  Congress  not  being  in  session,  and  710  unr 
fo)-eign  or  civil  declared  by  them."  In  another  paragraph  the  writer  says  :  "  From 
beginning  to  end  the  article  reiterates,  through  forty-seven  pages,  that  there  was  a 

'state  of  war,'  a  'time  of  war,'  and  an  'existence  of  war.' But  the  whole  of 

this  is  the  ipse  dixit  of  the  Reviewer."  Again  :  "  No  one  can  fail  to  see  how  serious 
must  be  the  doubt  whether  any  proclamation  of  the  President  can'create  a  state  of 
war,  and  bring  into  exercise  all  the  laws  of  war,  where  no  war  foreign  or  civil  has 
been  declared  by  Congress.  If  the  suppression  of  a  rebellion,  however  extensive,  comes 
within  the  war  power  of  the  federal  government  at  all,  in  the  strictly  legal  sense  of 
that  power,  it  is  clear  that  Congress  alone  can  exercise  that  power  under  the  Consti- 
tution." 

Now,  as  the  United  States  cannot  declare  war  against  any  State  of  the  Union, 
and  as  war  is  not  usually  declared  against  an  insurrection,  or  against  insurj;cnis, 
and  we  may  safely  conclude  never  will  be  so  declared  hy  Couffress,  the  conclusion 
seems  to  follow  that  we  cannot  have  a  civil  war  in  the  United  States.  What  is  now 
going  on  along  the  coast  at  different  places,  —  in  Albemarle  Sound,  Kentucky,  niuj 
Tennessee,  —  is  not  war/  It  is  only  fighting !  Great  Britain,  France,  and  Spain  iiavc 
acknowledged  the  Confederates  as  belligerents;  but  that  does  not  constiiute  the 
contest  &  foreign  war.  And  so,  according  to  the  editorial,  llnie  are  two  belligerent* 
without  any  war. 

But  we  are  not  without  authority  on  this  subject.  Sec  tlie  case  of  •'  The  Tro|>ic 
Wind,"  decided  by  Judge  Dun  lop,  U.  S.  District  Court  for  the  District  of  Co- 
lumbia, June  Term,  1861  ;  in  which  his  Honor  said,  ^efcr^in^,'  to  the  rresident'i* 
proclamation  :  "These  facts,  so  set  forth   by  the  I'rcbident,  with  tlie  assertion  of  a 


of  a  State  for  treason,  or  other  offence,  and  the  proposal  in 
Congress  to  confiscate  State  lands  is  unconstitutional.  The 
persons  who  offend  may  be  punished,  as  we  have  seen,  either 
personally  or  through  their  property. 

A  civil  war  cannot,  on  the  part  of  the  government  assailed, 
be  a  war  of  conquest.  The  territory  in  which  it  is  waged  be- 
ing one  which  belongs  to  the  government,  or  over  which  the 
government  has  jurisdiction,  it  cannot  be  added  to  the  existing 
government,  to  which  it  already  belongs,  by  any  military  oper- 
ations in  suppression  of  the  rebellion.  This  is  as  true  in  rela- 
tion to  the  United  States,  and  the  several  States,  as  it  is  of 
any  other  nation  or  government ;  for  although  the  territory 
comprised  in  the  several  States  is  not  the  property  of  the  United 
States,  and  the  United  States  do  not  own  the  several  States, 
the  States  are  all  component  parts  of  the  United  States ;  the 
government  of  the  United  States  has  jurisdiction  over  all  the 
StateSj^-^  rights  of  eminent   domain  there,  —  rights  to  hold 

right  of  blockade,  amount  to  a  declaration  that  civil  war  exists."  See  also  the  case 
of  "  The  Amy  Warwick,"  decided  by  Judge  Sprague,  U.  S.  District  Court  for  the 
District  of  Massachusetts,  February,  1862,  where  the  learned  Judge  disposed  of  the 
matter  in  this  wise  :  "  As  the  Constitution  gives  Congress  the  power  to  declare  war, 
some  have  thouglit  that,  without  previous  declaration,  war  in  all  its  fulness,  that  is, 
carrying  with  it  all  the  incidents  and  consequences  of  a  war,  cannot  exist.  This  is 
a  manifest  error.    It  ignores  the  fact  that  there  are  two  parties  to  a  war,  and  that  it 

may  be  commenced  by  either How  this  civil  war  commenced,  every  one 

knows This  was  war,  —  open,  flagrant,  flagitious  war  ;    and  it  has  never 

ceased  to  be  waged  by  the  same  confederates  with  their  utmost  ability.  Some 
have  thought  that,  because  the  rebels  are  traitors,  their  hostilities  cannot  be  deemed 
war,  in  the  legal  or  constitutional  sense  of  that  term.  But  without  such  war  there 
can  be  no  traitors.     Such  is  the  clear  language  of  the  Constitution." 

The  editorial  admits  that  Chief  Justice  Taney  had  judicial  knowledge  of  the 
proclamation.  On  these  authorities,  then,  he  had  judicial  knowledge  of  the  ex- 
istence of  war;  and  he  was  of  course  put  upon  the  inquiry  whether  he  could  re- 
quire the  military  commander  of  Fort  McHenry  to  come  out  of  the  fortress  in  time 
of  war,  and  bring  a  prisoner  before  him.  The  return  that  the  President  had  sus- 
pended the  habeas  corpus  pressed  that  inquiry  upon  him,  whetiier  the  President  could 
or  could  not  suspend  the  writ. 


27 

courtSj  and  enforce  judicial  proceedings ;  is  under  a  duty  to 
protect  the  State,  not  only  against  foreign  powers^  but  against 
its  own  citizens ;  and  guarantees  to  each  as  a  State  a  republi- 
can  form  of  government. 

It  is  an  absurdity  of  the  first  water  to  aftirm  that  with  such 
existing  relations  the  United  States  can  make  war  upon  a 
State,  conquer  it,  and  reduce  it  to  a  territorial  condition,  con- 
sistently with  the  Constitution.  If  the  citizens  of  a  State 
rebel,  the  United  States  have  express  power  under  the  Consti- 
tution to  suppress  the  insurrection.  But  this  neither  increases 
the  power  of  the  United  States  over  the  State,  so  as  to  author- 
ize a  war  of  conquest,  nor  relieves  the  United  States  from  the 
performance  of  their  constitutional  duties  to  the  State  and  its 
citizens.  Nor  does  it  deprive  the  State  of  its  State  rights 
under  the  Constitution. 

The  Constitution  secures  to  each  State  the  right  to  two 
Senators  in  Congress,  and  a  due  proportion  of  Representa- 
tives. Under  these  provisions  Mr.  Johnson  holds  a  seat  in  the 
Senate,  as  a  Senator  from  Tennessee,  and  Mr.  Maynard  a  seat 
in  the  House,  as  a  Representative  from  the  same  State,  iiot- 
withstanding  the  vote  of  secession  by  people  of  that  State,  and 
the  rebellion  there,  which  through  military  force  has  usurped 
the  State  authority,  and  subverted  the  authority  of  the  United 
States;  and  notwithstanding  the  representation,  noniinuUy,  of 
that  State  in  the  Confederate  Congress.  The  insurrection, 
therefore,  has  not  vacated  their  scats,  and  certaiidy  the  suj)- 
pression  of  it  cannot  do  so.  If  the  insurrection  were  a  State 
insurrection,  the  representation  in  Congress  wouUl  be  a  rebel- 
lious representation,  and  could  not  constitutionally  exist.  If 
it  is  not  a  State  insurrection,  the  suppression  of  it  cannot  be 
con(iuest,  nor  change  the  rights  of  the  State  or  of  its  loyal 
citizens.* 


*  Several  of  the  seceding  States  owe  debts  to  a  lurRC  nmoiint.     Conquest,  and  the 
Buhjugation  of  the  State  to  a  terrilorial  romlition,  inu>t  !>••  ii  |inicli<ul  cxlinj^ui^h- 


28 

When  the  insurrection  is  suppressed,  the  Constitution  and 
laws  will  remain  for  the  government  of  the  State  as  they  ex- 
isted before  the  insurrection,  except  so  far  as  they  have  been 
changed  by  the  legitimate  action  of  the  State  authority  during 
that  period,  or  by  revolution  in  the  State,  assented  to  by  the 
United  States.  Virginia  may  find  that  she  has  lost  Western 
Virginia,  if  the  State  organization  there  existing  has  adopted, 
or  shall  adopt,  the  proper  means  for  a  division  of  that  State. 

Some  act  may  be  necessary  for  the  election  of  officers,  in 
order  to  the  resumption  of  the  legitimate  State  authority  in 
those  States  where  it  has  been  entirely  subverted  ;  until  which 
time  there  may  be  a  military  occupation.  Whether  that  must 
be  the  act  of  the  people  of  the  State,  or  whether  the  United 
States,  having  suppressed  the  insurrection,  may  proclaim  that 
fact,  and  call  upon  the  people  to  assemble  on  a  day  named  for 
the  election  of  State  officers,  is  a  problem  which  may  remain 
for  solution  until  the  time  for  its  practical  determination. 
That  time  will  arrive,  if  we  are  faithful  to  the  Constitution. 
It  may  never  come  if  there  is  success  in  the  attempt  to  subvert 
the  Constitution  by  making  the  war  one  for  the  conquest  of 
the  Southern  States,  and  their  reduction  to  a  territorial  condi- 
tion, in  order  to  emancipate  the  slaves.  If  the  war  should 
take  that  character,  it  may  lack  the  support  necessary  to  bring 
it  to  a  successful  conclusion.* 


raent  of  the  debts  as  against  the  State;  because  the  State  would  no  longer  exist. 
Would  the  Territory  be  substituted  as  the  debtor  ?  No,  for  it  is  not  the  legitimate 
successor  of  the  State ;  and  moreover  it  would  have  no  means  of  payment.  Are 
the  United  States  to  assume  these  debts  as  a  part  of  the  expenses  of  the  warl  If 
not,  the  creditors,  domestic  and  foreign,  have  some  interest  in  this  matter.  Perhaps 
Great  Britain  might  be  disposed  to  inquire  upon  what  constitutional  principle  the 
debts  due  to  her  subjects  had  been  extinguished  through  the  conquest,  bij  this  country, 
of  a  part  of  itself!  She  could  make  a  better  case  on  that  than  she  had  on  the  seiz- 
ure of  Mason  and  Slidell. 

*  Perhaps  the  country  is  in  more  danger,  at  the  present  time,  from  Presidential 
aspirants,  and  the  intrigues  of  their  adherents,  than  from  the  Confederate  armies. 


29 

Constitutional  and  unconstitutional  propositions  press  upon 
us  with  such  rapidity  at  the  present  day,  that,  before  we  have 
time  to  dispose  of  one  set  of  them,  another  claims  our  atten- 
tion. We  commenced  this  article  with  the  intention  of  pre- 
senting some  views  respecting  the  difference  between  the  Dec- 
laration of  Independence  and  the  Constitution,  and  between 
the  Articles  of  Confederation  and  the  Constitution,  ^nd  with 
the  design  of  stating  a  few  plain  rules  respecting  the  construc- 
tion of  the  latter  instrument,  and  of  some  of  its  provisions,  — 
particularly  intending  to  show  that  it  did  not  confer  authority 
to  emancipate  slaves  by  proclamation,  or  act  of  Congress,  or 
by  the  operation  of  martial  law,  except  as  martial  law  might 
give  practical  emancipation  in  places  which  were  occupied  by 
the  military  force  of  the  government  in  the  suppression  of  the 
insurrection.  But  before  we  have  time  to  make  up  a  record 
on  this  last  point,  which  but  a  few  days  since  seemed  to  be  the 
main  point  of  those  revolutionists  who  seek  emancipation  at 
whatever  cost,  —  presto  !  the  position  that  martial  law  can 
emancipate  all  the  slaves,  if  not  abandoned  as  entirely  unten- 
able, seems  to  be  left  behind  as  useless,  and  a  new  constitu- 
tional theory  is  put  forth  in  the  House  of  Representatives  by 
the  member  from  Kansas ;  to  wit,  that  the  United  States  must 
conquer  the  rebellious  States,  and  hold  them  as  Territories,  in 
which  condition  Congress  could  govern  them  at  pleasure,  and 
thus  effect  the  work  of  emancipation. 

It  seemed  as  if  only  a  few  words  were  necessary  for  the  ref- 
utation of  such  a  notion,  Imt  the  ink  with  which  those  words 
were  written  is  hardly  dry,  when  we  have  a  most  claborjite  set 
of   resolutions   introduced   into   the    Senate  by   Mr.   Sciiatur 

If  officers  arc  to  be  checked  and  snuMied  for  fear  they  should  be  too  popular,  nnd 
thereby  become  dangerous  Tresidential  candidates,  it  is  about  time  to  l)rin(;  some  (if 
the  commanders  now  in  Missouri  and  Tennessee  into  suspicion,  nnd  ibcrc  should 
also  be  a  good  look-out  in  the  direction  of  Ali)eniarie  tjound  and  I'urt  Kovul,  ua 
well  as  across  the  Potomac. 

5 


30 

Sumner,  the  title  of  which  we  have  added  to  the  list  of  works 
at  the  head  of  this  article.  The  resolutions  are  nine  in  num- 
ber, and  introduced  by  three  recitals.  Coming  in  the  form  of 
legal  propositions  and  logical  deductions,  evidently  prepared 
with  great  care  and  elaboration,  and  presented  by  one  who  is 
not  only  bound  by  official  position  to  uphold  and  sustain  the 
Constitution,  but  who  would  not  be  willing  to  be  deemed  other 
than  a  sound  constitutional  lawyer,  these  resolutions  seem  to 
claim  a  more  extended  notice  than  we  have  thus  far  given  to 
this  part  of  our  subject.  They  contain  the  legal  argument 
which  is  logically  to  reach  the  constitutional  conclusion.  We 
shall  not  find  it  necessary,  however,  to  examine  each  of  them 
in  detail,  as  the  basis  of  the  whole  is  in  the  first  three  of 
them,  or  rather  in  the  first  and  third.  The  first  is  in  these 
words :  — 

"  1.  Resolved,  That  any  vote  of  secession,  or  other  act  by  which  any 
State  may  undertake  to  put  an  end  to  the  supremacy  of  the  Constitu- 
tion within  its  territory,  is  inoperative  and  void  against  the  Constitution  ; 
and  when  sustained  by  force,  it  becomes  a  practical  abdication  by  the 
State  of  all  rights  under  the  Constitution,  while  the  treason  which  it 
involves  still  further  works  an  instant  forfeiture  of  all  those  functions 
and  powers  essential  to  the  continued  existence  of  the  State  as  a  body 
politic,  so  that,  from  that  time  forward,  the  territory  falls  under  the  ex- 
clusive jurisdiction  of  Congress,  as  other  territory ;  and  the  State, 
being,  according  to  the  language  of  the  law,  felo  de  se,  ceases  to  exist" 

The  inconsistency,  incongruity,  and  illogical  conclusion  of 
this  first  resolution  are  quite  astonishing.  It  begins  by  assert- 
ing "  that  any  vote  of  secession,  or  other  act  by  which  any 
State  may  undertake  to  put  an  end  to  the  supremacy  of  the 
Constitution  within  its  territory,  is  inoperative  and  void 
against  the  Constitution."  But  this  is  followed  up  immedi- 
ately by  the  assertion  that  when  such  void  act  is  "  sustained 
by  force,  it  becomes  a  practical  abdication  by  the  State  of  all 
rights  under  the  Constitution."     That  is  to  say,  an  act  pro- 


31 

fessing  to  be  an  act  of  secession,  but  entirely  void^  when  sus- 
tained by  force,  is  a  surrender  of  all  the  rights  which  the  State 
lawfully  held  before  the  void  act  and  the  force  and  support  of 
it.  This  is  certainly  giving  to  such  a  void  act  a  very  compre- 
hensive effect.  As  a  general  rule,  a  void  act  neither  vests  nor 
devests  anything  ;  and  a  void  act  sustained  by  force  is  no  more 
effective  for  such  purposes  than  any  other  void  act.  Certainly 
the  conclusion  is  inevitable,  that  an  act  "  void  against  the  Con- 
stitution "  leaves  the  Constitution  legally  operative  just  as  it 
was  before.  If  the  Constitution  was  legally  operative  Ijcfore 
upon  a  State  and  the  people  of  a  State,  prescribing  rights  and 
duties,  it  is  still  legally  operative  in  relation  to  the  State  and 
people,  a  void  act  to  the  contrary  notwithstanding. 

But  this  is  not  all.  The  resolution  goes  on  to  declare  fur- 
ther, that  the  treason  which  it  (to  wit,  this  void  act)  involves 
"  works  an  instant  forfeiture  of  all  those  functions  and  powers 
essential  to  the  continued  existence  of  the  State  as  a  body 
politic."  Now,  it  may  be  admitted  that  an  act  void  so  that  it 
does  not  change  the  legal  status  of  the  party  who  does  the 
act  as  to  the  party  against  whom  it  is  done,  may  nevertheless 
be  an  illegal  act,  subjecting  the  first  party  to  punishment. 
The  act  of  insurrection,  which  is  void  so  far  as  the  attempt  to 
throw  off  allegiance  is  concerned,  is  an  illegal  act,  and  may  be 
treason,  for  which  the  rebel  may  be  punished.  But  treason 
does  not  work  any  instant  forfeiture,  nor  any  forfeiture,  le- 
gally speaking,  of  the  "  functions  and  powers  essential  to  the 
continued  existence  "  of  the  party  committing  it.  Through 
legal  process,  a  conviction  of  treason  might  work  a  forfeiture 
of  the  rebel's  goods  and  chattels  ;  and  a  judgment  (ounded  un 
the  conviction,  operating  as  an  attainder,  might  work  a  forfeit- 
ure of  his  lands,  or,  under  the  Constitution,  of  a  life-estate  in 
them.  And  in  the  execution  of  a  sentence  of  death,  liis  life 
may  be  taken,  and  "  the  functions  and  powers  necessary  to 
his  continued  existence"  will  thereby  cease  ;  but  this  is  by 
the  hanging,  and  not  l)y  the  "  forfeiture." 


32 

Again,  a  State  does  not  commit  treason,  and  therefore  all 
forfeiture  founded  upon  treason  must  fail  of  any  application 
to  a  State. 

But  the  most  astounding  part  of  this  resolution  is  its  logical 
conclusion,  —  "so  that  from  that  time  forward  the  territory- 
falls  under  the  exclusive  jurisdiction  of  Congress  as  other  ter- 
ritory, and  the  State  being,  according  to  the  language  of  the 
la\v,/(2Zo  de  se,  ceases  to  exist."  This  certainly  indicates  a 
relation  of  the  United  States  to  the  several  States  which  the 
authors  of  the  Federalist,  and  all  the  commentators  on  the  Con- 
stitution, and  the  great  jurists,  Mr.  Pinkney  and  Mr.  "Webster, 
who  have  successively  been  denominated  the  Defenders  of  the 
Constitution,  never  dreamed  of.  It  is  a  well-settled  principle 
of  the  common  law,  that,  upon  a  forfeiture  for  crime,  the  thing 
forfeited  goes  to  the  Crown,  or  to  the  lord  paramount,  as  the 
case  may  be.  If,  then,  Mr.  Senator  Sumner's  is  a  logical 
conclusion,  it  must  be  because  Congress,  or  the  United  States, 
is  the  sovereign  or  lord  paramount  of  the  several  States. 
But  we  have  never  before  learned  that  the  States  held  their 
right  over  the  territory  within  their  limits  by  grant  of  Con- 
gress, or  of  the  United  States.  We  know  that  the  States  first 
came  into  existence  ;  that  the  Congress  of  the  Confederation 
held  its  powers  from  them  ;  that  the  Congress  of  the  Constitu- 
tion holds  its  powers  from  the  people,  acting  by  States,  and 
thereby  becoming  one  people  for  the  purposes  of  the  govern- 
ment organized  under  the  Constitution,  —  leaving  to  the 
States  and  people  what  was  not  granted  either  expressly 
or  by  implication ;  —  so  that  the  reverse  would  be  true,  to 
wit,  that  if  Congress  or  the  United  States  should  forfeit  their 
powers,  they  would  revert  to  the  States,  or  the  people  of  the 
States. 

Again,  the  resolution  closes  by  the  assertion  that  the  State 
"  being,  according  to  the  language  of  the  law,/eZo  de  se,  ceases 
to  exist."     But  the  former  part  of  the  resolution  asserted  that 


33 

the  act  done  by  the  State  was  void  ;  and,  moreover,  that  the 
void  act  was  treason.  How  is  it  that  a  void  act  is  suicide  ;  or 
that  a  party  who  commits  treason  thereby  takes  his  own  life  ? 
And  how  is  it  that  the  dead  body  of  this  remarkable  suicide 
falls  under  the  jurisdiction  of  the  United  States,  in  a  diircrent 
form  of  existence,  for  the  purpose  of  government  ?  —  Ah  !  we 
understand.  By  a  political  metempsychosis  the  territorial 
soul  enters  into  the  dead  body  of  the  State  which  has  just 
cut  its  own  throat.  —  No!  .we  are  at  fault  there  again.  This 
might  answer  for  Louisiana,  and  Mississippi,  and  Florida,  and 
Arkansas,  which  once  had  a  territorial  existence  ;  but  where 
are  the  Carolinas,  and  Georgia,  and  Texas,  which  have  never 
existed  as  Territories,  to  get  these  territorial  souls  to  reanimate 
their  dead  State  bodies  ? 

It  will  not  do  to  say  that  Mr.  Sumner's  resolution  is  not  to 
be  understood  literally  ;  that,  when  he  speaks  of  the  treason 
of  a  State,  it  is  by  a  kind  of  analogy,  and  figuratively  ;  for  if 
his  treason  is  figurative,  his  forfeiture  must  be  figurative,  and 
his  conclusion  figurative ;  so  that  the  State  will  become  a  Ter- 
ritory merely  figuratively  and  rhetorically,  the  jurisdiction  of 
Congress  over  it  will  be  merely  imaginary,  and  the  felo  de  se 
will  be  but  an  apparition  of  a  dead  State,  instead  of  a  veritable 
corpus  delicti. 

The  second  and  third  resolutions  may  be  considered  to- 
gether.    They  are  as  follows  :  — 

"  2.  Resolved,  That  any  combination  of  men  assuming  to  act  in  the 
place  of  such  State,  and  attempting  to  ensnare  or  coerce  the  inhabitants 
thereof  into  a  confederation  hostile  to  the  Union,  is  rebi-lhous,  treason- 
able, and  destitute  of  all  moral  authority  ;  and  (hat  such  coinbinatioii  is 
a  usurpation,  incapable  of  any  constitutional  existence,  and  ultcrly  law- 
less, so  that  everything  dependent  upon  it  is  without  constitutional  or 
legal  support. 

"3.  Resolved,  That  the  termination  of  a  State  under  the  Constitution 
necessarily  causes  the  termination   of  those  peculiar  Kn-al  inslilulions 


449101 


34 

which,  having  no  origin  in  the  Constitution  or  in   those  natural  rights 
which  exist  independent  of  the  Constitution,  are  upheld  by  the  sole  and 

exclusive  authority  of  the  State." 

• 

The  terms  in  which  the  second  is  expressed  are  well  enough. 
But  in  its  application  to  the  subject-matter  it  is  emphatically 
inconsistent  with  the  first.  "We  can  hardly  argue  this  without 
repetition.  The  insurrection  at  the  South  is  truly  a  combina- 
tion of  men  who  assume  to  act  in  the  place  of  certain  States, 
and  who  have  ensnared  or  coerced  many  of  the  inhabitants 
into  a  confederation  hostile  to  the  Union.  This  combination 
is  rebellious,  treasonable,  destitute  of  all  moral  authority,  a 
usurpation,  —  and  everything  dependent  on  it  is  without  con- 
stitutional or  legal  support.  But  it  is  attempted  to 'support 
the  combination  by  force.  On  the  supposition  that  this  un- 
constitutional, utterly  lawless  usurpation  could  succeed  in 
severing  any  State  from  the  Union,  the  result  would  be  that 
the  laws  and  authority  of  the  United  States  would  no  longer 
be  in  force  there.  But  so  far  as  the  combination  had  not  seen 
fit  to  change  the  State  constitution  or  the  local  laws,  the  State 
organization  and  local  institutions  would  remain  in  force.  In 
other  words,  the  termination  of  a  State  under  the  Constitution 
causes  only  the  termination,  prospectively,  of  those  rights  and 
duties  which  exist  under  the  Constitution  ;  and  in  nowise 
affects  its  local  institutions,  which  exist  under  the  State  gov- 
ernment. 

On  the  other  hand  ;  if  the  combination  fails  of  success  in  its 
usurpation  and  rebellion,  —  if  the  force  is  overcome,  and  order 
restored,  so  that  everything  dependent  upon  the  attempt  was 
not  only  without  constitutional  or  legal  support,  but  has  no 
longer  the  support  of  force,  —  it  must  require  some  new  rules 
of  logic  to  show  how  the  attempt,  which  was  legally  powerless 
from  the  first,  and  has  become  practically  powerless  at  last,  has 
had  the  effect,  not  only  to  change  the  political  relations  of  the 
State  to  the  United  States,  but  to  subvert  the  constitution  and 


35 

laws  of  the  State  itself,  —  so  that  even  the  loyal  people  there 
are  deprived  of  all  the  political  and  legal  rights  which  tlicy 
held  under  the  constitution  and  laws  of  the  State. 

The  righteous,  successful  revolution  hy  which  the  peojile  of 
the  Colonies  threw  otf  their  allegiance  to  Great  Britain  did 
not  change  the  local  laws.  Clearly,  if  the  attempt  had  been 
unsuccessful,  it  would  not  have  abrogated  the  laws  respecting 
the  domestic  relations, —  not  even  those  which  governed  the 
"  peculiar  institution,"  which  then  existed  in  all  the  Colonics. 

If  it  shall  be  found,  on  the  suppression  of  the  rebellion,  that 
there  are  not  loyal  citizens  enougli  in  any  State  to  uphold  a 
State  government,  with  the  aid  of  tlie  United  States,  then  a 
new  case  will  be  presented,  which  may,  from  necessity,  require 
an  extraordinary  remedy.  In  tlie  mean  time,  it  is  to  be  hoped 
that  disloyalty  will  not  become  more  general  by  reason  of 
threats  of  conquest,  or  by  propositions  that  the  United  States 
shall  become  administrator  de  bonis  non  of  the  seceding  States. 

One  description  of  treason  against  the  United  States  consists 
"  in  adhering  to  their  enemies,  giving  them  aid  and  comfort." 
Mr.  Conway  and  Mr.  Sumner  have  given  the  "  aid  and  com- 
fort." Had  they  sent  in  their  adhesion  at  the  same  time,  they 
would  have  done  the  Union  much  less  mischief. 


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